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• ADMINISTRATIVE LAW FEMA injunction lifted as due process claim fails A trial court erred in issuing a preliminary injunction against the U.S. Federal Emergency Management Agency (FEMA) and ordering it to make additional rental assistance payments to people displaced from their homes by hurricanes Katrina and Rita, the 5th U.S. Circuit Court of Appeals held on Jan. 4. Ridgely v. FEMA, No. 07-30615. Recipients of rental assistance awards from FEMA sued the agency, alleging due process violations in the way it administers its rental assistance program. The plaintiffs had received rental assistance but were later found ineligible for continued aid. They alleged that FEMA’s administration of the program violates the due process clause of the U.S. Constitution, the Administrative Procedure Act and the Stafford Act, which governs FEMA. The plaintiffs moved for class certification and for a preliminary injunction. The judge certified the class and issued a preliminary injunction requiring the agency to make payments to class members until it established procedures for determining eligibility for continued assistance. The judge found that the plaintiffs had established a likelihood of success on the merits of their due process claims. The judge also rejected FEMA’s argument that the plaintiffs lacked a property interest necessary to support a due process claim. The 5th Circuit reversed. To obtain a preliminary injunction, plaintiffs need to establish a likelihood of success on the merits. But the plaintiffs here have not fulfilled this requirement because they have not shown that they can establish a property interest in rental assistance benefits. “Whether FEMA, by its policies and practices, has created a property interest in continued rent assistance is a fact-intensive question, and, given the limited factual development . . . one we cannot answer,” the court said. “As things currently stand, then, plaintiffs have not established a substantial likelihood of successfully showing the property interest needed to support their due process claim, and we must conclude that the district court abused its discretion in granting the preliminary injunction.” Full text of the decision • CONSTITUTIONAL LAW No Child Left Behind Act is an unfunded mandate The No Child Left Behind Act is an unfunded mandate that violates the spending clause of the U.S, Constitution, the 6th U.S. Circuit Court of Appeals ruled on Jan. 7. School District of the City of Pontiac v. Secretary of the U.S. Department of Education, No. 05-2708. Several school districts and educational associations in Michigan sued the U.S. Department of Education in a Michigan federal court over what they said was an unfunded mandate in the No Child Left Behind Act of 2002. Under the act, a state will qualify for federal funding if it submits a plan that “demonstrate[s] that the State has adopted challenging academic content standards and challenging student academic achievement standards against which to measure” the students’ performance. The plaintiffs claimed that the federal funding provided was inadequate to implement fully the required programs, that there was no requirement that they spend their own funds to ensure compliance, and that they were excused from full compliance by any requirement that required them to spend their own funds. The court dismissed the suit for failure to state a claim. The 6th Circuit reversed. The court found that the act doesn’t provide clear notice of the states’ obligation to incur additional costs to comply with the act’s requirements, as is necessary under the U.S. Constitution’s spending clause. The court found the act’s mandate to be unclear about whether the states have to comply regardless of whether they have federal funding. Nor is the act clear as to who must bear the extra costs of compliance or what the states’ liabilities are should they decide to accept federal funding. • CRIMINAL PRACTICE Defendant, government held to same standard The same standard of review applies whether it is a defendant or the government that is said to have breached a plea agreement, the 3d U.S. Circuit Court of Appeals ruled on Dec. 31. U.S. v. Williams, No. 05-4153. Charged with drug possession and distribution, Oyton Williams entered a plea agreement that included a provision saying that neither he nor the government would seek any upward or downward departure in sentencing. The presentence report, to which Williams did not object, recommended a sentence in the range of 168 to 210 months, based in part on Williams’ classification as a category III offender. At sentencing, however, Williams claimed he should be classified only as a category II offender, which would reduce his sentence to a term in the range of 151 to 188 months. Williams also argued that, under the U.S. Supreme Court’s U.S. v. Booker, 543 U.S. 220 (2005), courts have the freedom to make their own sentencing judgments. A New Jersey federal court agreed and sentenced Williams to 120 months. The government appealed, arguing that Williams’ request for a downward departure breached the plea agreement. The 3d Circuit vacated the sentence, holding that a refusal to enforce a plea agreement against a breaching defendant would “have a corrosive effect on the plea agreement process . . . .Because a plea agreement is a bargained-for exchange, contract principles would counsel that we reach the same conclusion when a defendant breaches a plea agreement as we would reach if the government breached.” Had Williams wanted to make a departure argument, “it would have been prudent to negotiate a different agreement with the government. Nor can he rely on Booker because he agreed to the plea agreement three months after Booker was decided.” • DAMAGES Punitives can be imposed without compensatories An award of punitive damages against a railroad company for racial discrimination is permissible even though the jury didn’t award compensatory damages or make a finding of a constitutional violation, the 5th U.S. Circuit Court of Appeals held on Jan. 2. Abner v. Kansas City Southern Railway Co., No. 06-30476. Eight African-American employees of Kansas City Southern Railway Co. filed suit against the company in a Louisiana federal court alleging violations of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. 2000e and 1981, for creating a racially hostile work environment at the company’s Shreveport, La., diesel shop. A jury found that the company had created a hostile work environment and awarded each plaintiff $125,000 in punitive damages but no compensatory damages. Affirming, the 5th Circuit said “a punitive damages award under Title VII and � 1981 need not be accompanied by compensatory damages.” Title VII specifically provides for punitive damages for intentional discrimination, and does not restrict an award of punitive damages to cases in which the plaintiff also receives compensatory damages. “Indeed, there is some unseemliness for a defendant who engages in malicious or reckless violations of legal duty to escape either the punitive or deterrent goal of punitive damages merely because either good fortune or a plaintiff’s unusual strength or resilience protected the plaintiff from suffering harm,” the court said. • EMPLOYMENT State must show it tried to accommodate worker Neither Massachusetts law nor the establishment clause of the First Amendment to the U.S. Constitution excused a public employer from demonstrating an undue burden or at least a de minimis cost to accommodating a prospective employee’s religious-based request not to work on certain days, the Massachusetts Supreme Judicial Court held on Jan. 4. Massachusetts Bay Trans. Auth. v. Massachusetts Comm’n Against Discrimination, No. SJC-09893. David Marquez, a Seventh Day Adventist, applied for a position as a part-time bus operator with the Massachusetts Bay Transportation Authority. Marquez informed his prospective employer that his religious beliefs prevented him from working on Friday evenings and Saturdays. Although he passed tests and qualified for the position, the authority informed him that it would not offer him a job because it could not accommodate his scheduling request. Marquez filed a discrimination complaint with the Massachusetts Commission Against Discrimination. After the commission and a state trial court ruled for Marquez, the authority appealed to the Massachusetts Supreme Judicial Court, the state’s highest court, arguing that any possible accommodation would have been an undue hardship under commonwealth law and would have imposed more than a de minimis cost in violation of the establishment clause of the U.S. Constitution. Affirming, the Massachusetts Supreme Judicial Court held that authority had failed to show undue hardship and that its establishment clause argument was inapplicable. Citing its decision, New York & Mass. Motor Serv. Inc. v. Massachusetts Comm’n Against Discrimination, 401 Mass. 566, 572 (1988), the court said, “Because the [authority] failed to present evidence that it took any steps to accommodate, or even to investigate possible accommodations for Marquez, we need not address its claim that requiring an employer to incur more than de minimis cost to accommodate an employee violates the establishment clause.” • LABOR LAW Undocumented workers covered by labor laws A meat wholesale company violated labor laws when it refused to bargain with employees by claiming that the vote to unionize was invalid because undocumented immigrants participated, the U.S. Court of Appeals for the Federal Circuit held on Jan. 4. Agri Processor Co. Inc. v. National Labor Relations Bd., No. 06-1329. Employees of Agri Processor Co., a meat wholesaler in Brooklyn, N.Y., voted in September 2005 to join the United Food and Commercial Workers International Union. The company refused to bargain and the union filed an unfair labor practice charge with the National Labor Relations Board (NLRB). The board said the company’s refusal to bargain violated the National Labor Relations Act (NLRA), including 29 U.S.C. 158(a)(1)(5), which makes it “an unfair labor practice for an employer to refuse to bargain collectively with the representatives of his employees.” In a hearing before an administrative law judge, the company alleged that most of the voting workers were undocumented immigrants not authorized to work in the United States. Arguing that undocumented workers are prohibited from unionizing because they do not qualify as employees protected by the NLRA, the company sought to nullify the election. The judge ruled that Agri Processors was required to bargain with the union. The Federal Circuit affirmed, citing the U.S. Supreme Court’s ruling, Sure-Tan Inc. v. NLRB, 467 U.S. 883 (1984), in which the justices held that the definition of employee under the NLRA included undocumented immigrants since they are not among the groups of workers specifically exempted by Congress. The court rejected the company’s argument that the Immigration Reform and Control Act of 1986, which made it illegal for companies knowingly to employ undocumented immigrants, amended the NLRA to exclude undocumented workers.

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